Canadian Employment Law Today

January 22, 2014 Pattern of behaviour for constructive dismissal Continued from page 1 A similar constructive dismissal case that resulted from poor relations among staff is Danielisz vs. Hercules Forwarding Inc. Barbara Danielisz, a customs broker and departmental manager at Hercules, a freight services company in Toronto, complained she was subject to a poisonous working atmosphere. She claimed her superior undermined her authority by not allowing her to discipline her staff and her colleagues "ganged up" on her. Conversely, Danielisz's colleagues claimed she was not a team player and made derogatory and verbally abusive comments to others. Hercules held a meeting in attempt to resolve the situation but was unsuccessful. Danielisz went on stress leave and Hercules said it expected her to return to work and perform her duties. Danielisz filed a legal claim for compensation for stress, depression and constructive dismissal, which Hercules took as her resignation. The British Columbia Supreme Court found there weren't grounds for constructive dismissal and Danielisz had helped to create a poisonous working atmosphere as much as she'd suffered from it. The court said if Danielisz had done more to mitigate the issue, she wouldn't have had to make the claim — which was dismissed and not granted a leave of appeal. Comparable to Danielisz's case, Yohann Johnson, an employee of automaker General Motors (GM) in Oshawa, Ont., filed for constructive dismissal (General Motors of Canada Ltd. v. Johnson) when he attempted to return to work after being away on sick leave for two years from his job as a result of what he claimed was the poisonous working atmosphere and racism. Upon his return, Johnson was offered two positions in two different departments. However, he did not accept either position, stating he didn't want to come in contact with the racist employee. GM interpreted Johnson's rejection of the positions as his resignation. Johnson took the case to the Ontario Court of Appeal, where he was initially awarded $90,000. However, the same court later overturned the decision, stating there was no conclusive evidence of workplace racism to prove constructive dismissal. It didn't agree there was workplace bullying as General Motors had made notable efforts to retain Johnson by offering him two positions, both of which he refused. Furthermore, the court 6 stated that standalone incidences are not enough to prove the existence of a poisonous working atmosphere and that there needs to be a consistent pattern of misconduct to be considered sufficient evidence. Johnson's case was dismissed. son, 2013 CarswellOnt 10496 (Ont. C.A.). • Piron vs. Dominion Masonry Ltd., 2013 CarswellBC 1028 (B.C. C.A.). About the Author Denial of expected bonuses can lead to constructive dismissal In addition to the above cases, denial of an annual bonus can also be construed as constructive dismissal, depending on whether the bonus is considered to be discretionary or part of a salary package, as evidenced in Piron vs. Dominion Masonry Ltd. James Piron was a long-serving employee at Dominion Masonry, a commercial masonry company in Burnaby, B.C., when his employment ended in 2011 due to a disagreement over his bonus entitlements. That year, Dominion Masonry stated it was experiencing financial hardship because of the economic downturn and informed Piron it couldn't pay his annual bonus. Piron argued this was unacceptable, as his bonus was part of his employment agreement. Dominion Masonry disagreed, saying his bonus was discretionary. Piron took the case to the B.C. Court of Appeal, where it was unanimously agreed he should receive his bonuses. He was awarded $20,000 in addition to his compensation package, but the court felt a reduction was in order.  These cases demonstrate the need for substantial evidence and multiple incidents of misconduct for an employee to win a constructive dismissal case. Employer attempts to resolve such workplace issues go a long way in the eyes of the court, as evidenced in both Danielisz and Johnson. So, the answer to the question an employee may ask when considering constructive dismissal — "Should I stay or should I go?" — is: "it depends on the situation." Constructive dismissal is discretionary and is largely judged on a case-by-case basis, often requiring additional speculation and legal assistance before a conclusion is reached. Should an employee wish to file for constructive dismissal, he must present hard and consistent evidence to win his case. For more information see: • Potter vs. New Brunswick (Legal Aid Services Commission), 2013 CarswellNB 196 (N.B. C.A.). • Danielisz vs. Hercules Forwarding Inc., 2012 CarswellBC 2321 (B.C. S.C.). • General Motors of Canada Ltd. v. John- Ritu Mahil Ritu Mahil is a lawyer with the Labour and Employment Law Group at Lawson Lundell LLP in Vancouver. She can be reached at (604) 631-9156 or rmahil@lawsonlundell.com. Ask an expert: Reviewing employment contracts Continued from page 2 exchange for signing the contract ("consideration") since the employee was already in possession of the job before signing the contract. As such, execution of the contract prior to the commencement of work is an important element of ensuring it is later enforceable for the employer. For more information see: • Bear Day Care v. Hollander, 2010 CarswellOnt 11089 (Ont. Lab. Rel. Bd.). • All-Way Transportation Services Ltd, Re, 1979 CarswellOnt 855 (Ont. E.S.B. (Adjud.)). • MenuPalace.com Corp. v. Saladino, 2008 CarswellOnt 5544 (Ont. Lab. Rel. Bd.). • Altman v. Steve's Music Store Inc., 2011 CarswellOnt 1703 (Ont. S.C.J.). Brian Wasyliw is a lawyer with Sherrard Kuzz LLP, a management-side employment and labour law firm in Toronto. He can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hour), or by visiting www.sherrardkuzz.com. Published by Canadian HR Reporter, a Thomson Reuters business 2014

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